What about Senate bill. no 53 or The Magna Carta for Internet Freedom?

by nicapascual127

Senate Bill no. 53: The Magna Carta for Internet Freedom

This article is about the newly proposed bill of Senator Miriam Defensor – Santiago known as the Magna Carta for Internet freedom. This bill is already one of the pressing issues in our society that is in need to be solved by legislature due to the effects that it cause to every individual. As technology develops, the means and methods of communication also develops.

 

The senate bill number 53 or the Magna Carta for Internet Freedom was the first bill Senator Miriam Defensor- Santiago filled in the 16th congress. The senate bill no. 53 was filled after the controversial RH Bill, the senator claims that the RH bill was the biggest triumph of the 15th congress, the senator is determined to make the Senate bill no. 53 or the Magna Carta for Internet Freedom be as triumphant as the RH bill for the new congress. The senate bill no. 53 or the Magna Carta for Internet Freedom tends to repeal the Republic Act. 10175 or also known as the Cybercrime Prevention Act. The Cybercrime Prevention Act was signed by President Benigno Simeon C. Aquino III on September 12, 2012 into law Republic Act No. 10175, or the Cybercrime Prevention Act of 2012.By its subject, the law was crafted to address criminal acts committed through the expedient of cyberspace (i.e., fraud, child pornography, and theft of proprietary information). However, the law also contains several provisions that diminish and restrict freedom of expression over cyberspace, prompting vigorous protest from citizens, netizens, and journalists, and no less than 11 constitutional challenges before the Supreme Court.The problem started during the law’s period of interpellation/amendments in the Senate, with the insertion of the provision on libel of the Revised Penal Code (RPC).

 

On an interview with Senator Miriam Santiago she said: “Of course, the Supreme Court said it is only the sender who is liable, not the person who is commenting or who is receiving. But what do these words mean? Who is the sender? The service provider? The individual netizen? Or if they’re a group, how do we identify them? Or even worse, if they are not using their true identities, how are you going to go beyond what they profess to be their identities on the Internet? That is the main problem today.” These are just few of the technicalities that are in need to be change, improve, amend and develop in order that such bill that shall become a law will not violate any existing laws. Our legislative department, as law makers every detail in all the parts of the bill is important and has a great impact on the interpretation as whole of the bill imposed. The previous law, the Cybercrime Prevention Act has a lot of rooms for improvements. The new bill shall enhance the contents of the Cybercrime Prevention Act in order to not violate any existing law.

 

The senator said, “R.A. 10175 confines the Philippines to 20th century capabilities in this 21st century information society. Clearly, laws that have an impact on cyberspace must address the realities of the present and the challenges of the future”. An average person nowadays owns a cellular phone or what we commonly call as smartphones to communicate, these cellular phones are now improved to access the Internet, which a lot of people use and is already made a part of their everyday routine. The use of the internet is very vital to our daily activities, whether for business matters, education, hobbies and even religion, the internet already achieved a big role in making our lives more progressive and convenient. Anyone can easily access the internet today. One person can be connected from one place to another in just seconds. Freedom of Communication in the cyberspace is unlimited that is why our legislature must seek to limit such freedom because too much of such make some people abuse such freedom that it causes damage and injury to another person. It is a responsibility of the government to control and regulate the cyberspace and to make sure that when a person suffered injuries or damage another, such person shall be imposed of the necessary penalties of the consequences of the actions made.

 

The senator and the bill passed clearly tends to give the Filipinos more freedom in using the internet or the cyber space. She mentioned “While it is important to crackdown on criminal activities on the internet, protecting constitutional rights like free expression, privacy, and due process should hold a higher place in crafting laws,”. The senator aims to provide protection of the rights and freedom of the people of the Philippines in using the internet or cyberspace while defining and penalizing crimes in the cyberspace. I agree with the senator, technology should not be feared and should be embraced by our law makers because the times are different and clearly, technology places a big part in our society today. The people should just comply with the standards that are set by our lawmakers. The people must only bear the rules that are instilled in order to protect the rights of others. The fear that the people would only know is only on the fear of the penalty that shall be imposed upon those who shall break the law or more specifically those who shall garner injury and damage to another person through the cyberspace.

 

The senator upholds the voice of the people to their right of freedom of speech, which under the constitution is a right that cannot be taken away by anyone. The constitution is the supreme law of the land, any law or jurisprudence cannot out rule the constitution. The Bill explains this as a more improved revision of the controversial cybercrime law. It was believed that the Cybercrime Prevention Act of 2012 violates an international treaty. This treat is the International Covenant on Civil and Political Rights (ICCPR) which was enforced in 1987. The violation was noticed by Mr. Gilbert Andes of Media Defense Southeast Asia.

 

The senator also explained that the Magna Carta Philippine Internet Freedom treats libel as a civil liability rather than a criminal act. It is better that the libel in such law is distinguish from being criminal to civil because various impositions shall be based upon whether it would be in Civil or in Criminal and one aspect that shall be affected is its liabilities. It is not overbroad or vague in its provisions on libel, unlike the cybercrime law”.

 

To understand fully what the senator said about libel, we must first dwell on the subject, which is written under the revised penal code of the Philippines and why “libel” is considered criminal in nature. Under Art. 353 of the Revised penal Code of the Philippines, A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. The Internet or cyberspace can be used for posting such material that can damage the honor of another. But how can a person post this malicious imputation of another? Under Art. 354 of the Revised penal code of the Philippines, there are requirements for the publicity. Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

 

First, A private communication made by any person to another in the performance of any legal, moral or social duty;

 

Second, A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

 

Clearly, the law explains that in order to be held liable for the crime of libel, the malicious defamatory statements need to be published. A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished under Art. 355 of the Revised Penal Code of the Philippines. This is an important issue that the people must understand in order to evolve the law into a better one. Libel must be ascertained in order for the penalties imposed upon such accused shall be determined.

The part of Libel in the cybercrime law specifically in Section 4 (4) of such law made an outright defiance upon the UN Human Rights Committee view in the case of Alexander Adonis vs. the Republic of the Philippines which was issued last October 2011. The facts of the case is about Adonis who is a Bombo Radyo announcer who went to jail for libel for two years, which the UN Human Rights Committee viewed to be incompatible with Article 19 paragraph 3 of the ICCPR on freedom of expression. He said the UN committee, which is different from the UN Human Rights Council and monitors compliance with the ICCPR, believes that “the Philippines is under an obligation to take steps to prevent similar violations including reviewing the relevant libel legislation.” “The HRC views are accepted as authoritative on the issue of a state party’s compliance with their obligations under the ICCPR since the membership of this body consists of leading experts in human rights,”.

 

Cybercrime Prevention Act of 2012 criminalizes several types of offenses, it includes illegal access (hacking), data interference, device misuse, cybersquatting, computer-related offenses such as computer fraud, content-related offenses such as cybersex and spam, and other offenses. The law also reaffirms existing laws against child pornography, an offense under Republic Act No. 9779 (the Anti-Child Pornography Act of 2009), and libel, an offense under Section 355 of the Revised Penal Code of the Philippines, also criminalizing them when committed using a computer system. Finally, the Cybercrime Prevention Act of 2012 provides for a “catch-all” clause, wherein all offenses currently punishable under the Revised Penal Code are likewise punishable under the Act when committed using a computer, with corresponding stricter penalties than if the crimes were punishable under the Revised Penal Code alone. Senate Bill no. 53: The Magna Carta for Internet Freedom adapts upon the deficiency and the discrepancy of the Cybercrime Prevention Act of 2012. It shall clarify the offenses mentioned on whether what penalties shall be imposed upon, to whom shall penalties shall be imposed and how can the crime is acted upon.

 

Here are some of the reasons why Senate Bill no. 53: The Magna Carta for Internet Freedom is needed to repeal the Cybercrime Prevention Act of 2012:

 

You must only see positivity in the cyberspace. If you’re a law-abiding citizen who happens to use blogs, Facebook, and Twitter to let the world know about your opinions as such you cannot express any negativity online because you can be a cybercriminal. If you do, that could be classified as libel, which is defined in the Revised Penal Code as “the public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person…”

 

Cybercrime Prevention Act is considered as a mala prohibita law. We must distinguish offenses under special laws are considered mala prohibita as from mala in se. In mala in se, there must be a criminal mind to be convicted. In mala prohibita, there need not be a criminal mind. The mere perpetuation of the prohibited act is enough. So, even if you’re kidding around by using somebody’s name as a verb or noun to signify not-too-admirable acts you could get arrested. 

 

The penalties is too much. If you are convicted of online libel, you may spend a maximum of 12 years in prison and be fined a maximum of ₱1,000,000.

 

The Cybercrime Prevention Act of 2012 also defined cybersex which is The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration. Cybersex can be done by two consenting adults which the Act cannot prohibit them on doing because nothing is illegal of the act of two adults.

The Cybercrime Prevention Act of 2012 also penalize the persons who had old libelous posts that are still online today can be charged with online libel. So if you’re still publishing any libelous posts after the law took effect that made the post illegal, then you’re liable for its publication today.

 

A person shall also be liable with a libel post that is merely a suggestion or stating a opinion sarcastically as long as you do so in a public manner like posting on the cyberspace. The basis of such is from the Supreme Court of the Philippines which ruled that even ironic, suggestive, or metaphorical language could be considered libelous.

 

Section 1 of Article III of the Bill of Rights of the 1987 Constitution provides that ‘no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.’ However, under Section 19 of the Cybercrime Prevention Act, ‘when a computer data is prima facie found to be in violation of the provisions of this Act, the Department of Justice (DOJ) shall issue an order to restrict or block access to such computer.'” No court intervention is needed, the DOJ can go right ahead and compel you to stop publishing your posts.

 

The Cybercrime Prevention Act also penalize a person who shall be committing a crime if you “blacken the memory of one who is dead.” The law says, if you can’t say anything good, then you better not say anything at all. That’s great for petty issues but not when we’re talking about people who use their position to take advantage of defenseless individuals.

 

Those who play a part in spreading the post that contents are libelous shall be charged for abetting libel. Simply clicking the “Like” button of Facebook or re-tweeting posts on Twitter may be tagged as unlawful as well.

 

The Magna Carta also protects the right to innovation, allowing the State to have protection and promotion of innovation. The state shall also prohibits persons from restricting or denying the right to develop new information and communications technologies without due process of law. The Intellectual Property Code states that “no person shall be denied access to new information and communications technologies, nor shall any new information and communications technologies be blocked, censored, suppressed, or otherwise restricted, without due process of law or authority vested by law.”  Innovators are also protected from liability for the actions of users.

 

The Magna Carta adheres for the promotion of the protection of the privacy of data, providing the right of users to employ encryption or cryptography “protect the privacy of the data or networks which such person owns or otherwise possesses real rights over.” It shall guarantees a person’s right of privacy over his or her data or network rights and the state is required to maintain “appropriate level of privacy of the data and of the networks maintained by it.” Every person shall be protected of the security of data and must guaranty the right of persons to employ means “whether physical, electronic or behavioral” to protect the security of his or her data or networks. Rights of third parties over private data, requiring a court order issued in accordance with Section 5 of the Act to grant access, and preventing third parties from being given property rights to the data accessed.

 

Intellectual property online is in accordance with the existing Intellectual Property Code of the Philippines (RA 8293).  It shall prevent internet service providers and telecommunications entities from gaining intellectual property rights over derivative content that is the result of “creation, invention, innovation, or modification by a person using the service provided by the Internet service provider, telecommunications entity, or such person providing Internet or data services.”  

The Magna Carta ensures the addresses fair use, declaring that “the viewing, use, editing, decompiling, or modification, of downloaded or otherwise offline content on any computer, device, or equipment shall be considered fair use” with certain provisions.  It shall deal with intellectual property infringement, notably defining the “non-attribution or plagiarism of copyleft content” as infringement.

 

The Act covers a range of other issue areas, including hacking, cybercrime, and human trafficking. Techonology shall keep on evolving as our laws shall keep on adapting. The Act also creates an Office of Cybercrime within the Department of Justice to be designated as the central authority in enforcement of the Act.  Notably, special courts in which judges are required to have specific expertise in computer science or IT are also designated to hear and resolve all cases brought under the Act. Overall, the crowdsourced Act is a success story and we support our allies in the Phillippines as they work to push it forward in the Senate.

 

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